Kirstie Goulder

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Case Update: Can robots be regarded as inventors under the Patents Act 1977?

Components / 09 October 2020

Last month, the High Court rejected an appeal made by an artificial intelligence expert, Dr Stephen Thaler, who sought to establish that a machine invented two products. We consider this case in further detail below.

The initial patent application
Last year, Dr Thaler sought to file a patents form which attributed inventorship of a food container and an emergency warning light to a ‘creativity machine’ called “DABUS”. He also claimed that he was entitled to acquire the right to grant of the patents in question because he owned DABUS.

The Intellectual Property Office (“IPO”) challenged this application and decided that since DABUS is a machine and not a natural person, it cannot be regarded as an inventor in accordance with section 7 and 13 of the Patents Act 1977.

In particular, the Hearing Officer stated that “inventors other than natural persons were not contemplated when the European Patent Convention was drafted”, nor with regard to the Patents Act. He, therefore, held that an inventor must be a “natural person”, i.e. a human as opposed to an AI machine. He also disagreed that Dr Thaler was entitled to apply for a patent simply by virtue of his ownership of DABUS.

The application to appeal
Dr Thaler sought to challenge this decision in the High Court. The High Court upheld the IPO’s decision and refused permission to appeal.

The Judge agreed with the IPO’s comments in its original decision that the questions raised, relating to inventions created by AI machines, are ‘undoubtedly interesting’ and are likely to become more prevalent in the future.

Is it time for change?
The use of AI and robotics within the manufacturing sector was already a rapidly growing trend, and perhaps even more so in response to the current pandemic with increased demand for various products, in particular relating to online sales. Last week, This Is Money reported about allegations that Ocado is being sued by a Norwegian firm, Autostore, over alleged patent infringement with its warehouse robots.

Both the IPO and court in this appeal acknowledged that there is a legitimate question to be discussed relating to how or whether the current patent system handles such inventions. They believe this should be debated more widely and that any changes to the law be considered in the context of a debate, as opposed to seeking to apply it to legislation over 30 years old. This will be an interesting issue to watch and we will keep you updated.

Our manufacturing specialists provide focussed legal advice to multiple manufacturing businesses, both regionally, nationally and internationally. Combined with our newly formed technology sector team, led by Jonathan Reardon, we are ready to advise on cutting-edge developments in the law.   

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